Guest opinon: Land use amendments can be hard to fight

August 3, 2017

Although "the media" is taking a pounding from factions nationally, Cape residents continue to turn to local news outlets when a concern they can't seem to get resolved arises.

Frequently, they have tried to get answers from some government official or entity with little progress and they hope that public scrutiny - and reporting that lays out the facts - will make a difference.

Sometimes it does.

And sometimes it doesn't.

Land use amendments and zoning change requests often fall into the latter category.

No matter the public outcry. No matter the number of stories posted, printed or broadcast.

Simply put, on the one side are small property owners who bought with a certain expectation.

That expectation may be erroneous - did they really think that that large parcel on a major roadway with land use and zoning designations to allow commercial development would stay "green space" forever?

The owners of large parcels also have private property rights and that includes the expectation that they can develop in compliance with their site's particular use.

Granted, for commercial, that allows for lots of leeway, as neighboring property owners who invested in a nice 3-2 retirement home with a pool and lanai overlooking that vacant acreage often painfully learn.

But not every "not-in-my-backyard" resident is wrong in his or her assumptions.

Also on the one side are property owners who bought a lot, a house, or a condo with the understanding that the land use and zoning (that "and" is key here) precluded such development, or any other perceived "incompatible" use.

These are the tough ones as they often pit homeowners, who don't understand the process, against site developers or sellers with money. Money for the engineers to do such things as traffic studies. Attorneys to prepare the voluminous paperwork needed to push through requests for land use amendments and zoning changes which will include quasi-judicial hearings at which only the facts, by law, will be considered.

Homeowners do have protection against abuse - change requests must meet numerous criteria and are subject to hearing officer or Planning and Zoning perusal as well as public hearings and a City Council vote.

Still, it's an uphill battle for all of the reasons above and for one more - applicants for land use and zoning changes work with city staff throughout the process and, by the time the matter is ready for P&Z and Council consideration, it comes with staff approval more often than not.

Consider: In the last two years, there have been 23 proposed future land use ammendments, including eight that were city initiated.

Of those brought forward by private property owners, city staff recommended denial on four, two of which were withdrawn and so never came before City Council.

Of the 23, 14 were transmitted to the state or were otherwise completed. Of the remaining nine, two were withdrawn, one was denied, and six still have not come before Council.

Those include a proposal for "The Palms," which would change the land use designation at the old golf course from parks and recreation to single-family residential, which would match the land use to the acreage's zoning; and the "Christ Lutheran Church," project, which would change the land use for an approximate 7.5 acre site on Del Prado Boulevard from public use to commercial/professional.

Abutting property owners have been extremely vocal in their protest of the golf course acreage land use change, drawing recommendations against from both P&Z and the city's new Youth Council advisory board.

Council will consider the matter in September.

The future land use amendment for the bank-owned church site is set for Council consideration Monday.

The amendment calls for the current land use of Public Facilities, with a zoning for places of worship, to become commercial/professional.

The application lists the "expected development" as 25 percent lot coverage with a total estimated floor coverage of 82,800 square feet, which staff explains is a "worst-case scenario for impact assessment" that would occur only if the most intense use is later proposed.

No site-specific plans have been submitted.

The future development estimate lists commercial retail, automotive, etc. with an anticipated land use mix of commercial retail, office, convenience store and restaurants.

The residential neighbors surrounding the church site, acquired by Fifth Third Bank when the property went into foreclosure, took a more typical route:

They called, emailed and texted each other.

The board of directors for the Del Prado Townhouse Association sent a formal letter of concern to the city.

It received neither acknowledgement of receipt, a response, or a reading into the record at the P&Z meeting at which city staff recommended approval and the appointed board passed the amendment request on to City Council with a 7-0 vote.

In normal circumstances, upon speaking with neighbors and Cornwallis homeowners, I could have assigned a story, perhaps considered an editorial position.

However, neither was appropriate due to a potential for conflict of interest - I'm a member of the Del Prado Townhouses Association; I own a condo in the 43-unit complex directly across from the now-empty church.

Instead, I will address the proposal the same way other property owners do - via an opinion column, the equivalent of a letter to the editor, of which we've run dozens upon dozens over the years for those in similar situations. Mostly to no avail.

Some background:

A church has been on the site since the '60s. Its Future Land Use designation has been Public Facilities since 1989.

According to city staff, the proposed land use amendment barely tops half of the city's own criteria - five of the eight applicable apply fully, three partially. According to staff, that makes the requested change to commercial/professional "appropriate."

Staff further finds that the proposed amendment adheres to three Comprehensive Plan policies - promotion of commercial districts, promotion of commercial "at or near transportation nodes," and a policy that "discourages strip-style commercial development" which it says the site in question would not be an example of.

Since the request is consistent with the city's Comprehensive Plan, and since the city needs additional commercial land, staff recommends approval.

A couple of things, some of which staff acknowledges, one of which you won't find in their presentation or backup material.

Among the criteria staff examines when such a land use change is proposed is "integration," how the change integrates with other like properties, and "intrusion," how the change would affect properties around it. On both these issues, staff found the site to be "partially consistent."

In regard to integration, it is unlikely that the site will attract pedestrian traffic due to its location on a roadway with 45 mph speed limits. In regard to intrusion, staff states that "typically, new commercial properties are less likely to be considered intrusive if the surrounding or adjacent residential areas are sparsely developed. While the finding of intrusion is subjective and depends on many factors, the principle is the proposed commercial property would not likely be intrusive if adjacent residential areas are 25% or less developed."

Staff concedes that the residential areas within 1,000 feet of the site are more than 25 percent developed.

They deem it "partially consistent," nonetheless.

"However, factors such as the degree of compactness, and the existence of nearby commercial uses mitigate potential intrusive impacts of the proposed amendment."

I would ask, to or for whom?

In its recommendations presentation, staff also cites the need for additional commercial land.

What the presentation does not include is that that need is not present in the Del Prado Boulevard South corridor, which is well lined with commercial and office use. In fact, city staff itself recommended that a land use amendment for a site about a mile and a half down the road be changed from commercial to multi-family residential because there is more than enough commercial there. The staff finding stated that while the projected demand for commercial acreage in the Del Prado South corridor is 243 acres, the corridor currently has "406 acres of Commercial land," not including the Community Redevelopment Area located along this corridor, "an excess of 163 acres."

Therefore, staff found that for the site along Four Mile Cove Parkway near the Walmart, "..the city can accept the loss of 10.92 acres of commercial land, which was not present during the 2003 study of the corridor."

So staff recommended the "loss" of about 11 acres because there is an excess of commercial in the corridor, but is recommending that this 7.5 acre site have its land-use designation changed because the city needs more - along a thoroughfare with an abundance of like designation.

I do understand the frustration felt by property owners who call me when substantive changes are proposed. Recommendations can appear muddled and confusing to even those who check the maps, check the zoning and sign on the dotted line to buy what is, in all likelihood, their largest single investment.

If I were to attend Monday's meeting as an affected property owner, the question I would ask Council to address - and get answered - is how much Public Use acreage the city has as well as how much houses of worship zoning. And how much of each the city is projected to need down the road.

My guess is not enough.

Especially in a community where residential property owners don't have a prayer if they don't come to land use hearings heavily armed with facts and figures because the "property values" argument seldom prevails in the face of professionally prepared documents, a staff recommendation of approval and the chance for the city to get "highest and best use"- i.e. more - tax dollars.

My advice to my fellow property owners at the Del Prado Townhouses and the Cornwallis Neighborhood Association members who asked for it?

If you don't want to see that shady corner with its historical houses of worship designation changed, Monday is your last chance short of litigation.

Once the land use has been changed, "matching zoning," is usually a foregone conclusion. And "save our worship" T-shirts after the fact aren't going to save a thing.

-?Valarie Haring is the executive editor for the Breeze Newspapers. She can be reached at 574-1110 ext.119